IN THE CASE OF:	

		BOARD DATE:	6 March 2015

		DOCKET NUMBER:  AR20150001044 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, through a remand from the U.S. District Court, District of Connecticut, dated 13 November 2014, requests an upgrade of his discharge to Honorable (HD) or in the alternative to General Under Honorable Conditions (GD).

2.  The court issued an order on 13 November 2014.  In its order, the court cited the memorandum issued by the Secretary of Defense, dated 3 September 2014, which gave the Secretaries of the Military Departments guidance on the consideration of discharge upgrade applications where the applicant asserts he or she has post-traumatic stress disorder (PTSD).  The court order states the applicant's action is remanded to the Army Board for Correction of Military Records (ABCMR) for evaluation in accordance with the policy memorandum.

3.  The applicant provides all arguments and evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for an upgrade of his discharge to HD or in the alternative a GD.

2.  Counsel states, in effect, the applicant has been diagnosed with PTSD and contends that PTSD was the catalyst for his misconduct.  Counsel also states:

* he served on the front line during some of the most intense combat operations in the Republic of Vietnam (RVN)
* he performed duties including clearing bunkers and patrolling the Vietnamese countryside at which time he witnessed the killing of Soldiers and civilians
* he sustained severe combat injuries to his knees, back, and head when he was blown from a tree in which he was perched in an attempt to identify the enemy position while his platoon was under heavy fire
* these injuries resulted in his temporary paralysis, medical evacuation from the RVN to Japan, and eventual evacuation to the U.S. Naval Hospital, St. Albans, NY, for treatment
* he subsequently received the Purple Heart for his combat injuries
* he continues to suffer from PTSD, memory loss, confusion, psychological distress, and physical pain resulting from his combat injuries
* in a state of ill health and extreme confusion, he believed he had permission to leave the medical facility at St. Albans, NY (where he was an inpatient receiving medical care) and convalesce at home where he could assist his mother who was suffering from domestic abuse
* once at home, his family members noticed his visible pain, memory loss, depression, and dazed state
* after leaving home again, he returned to the U.S. Naval Hospital at St. Albans on more than one occasion for medical care
* on 6 June 1974, Federal Bureau of Investigation agents arrested him on AWOL charges at his home in Connecticut and he was taken to Fort Dix, NJ, where he was referred to a general court martial
* at the time of his arrest he was determined qualified to perform only limited duty – he reported having back pain, anxiety, and headaches, and his prescription for Valium was renewed
* he claims he was mistreated by military police while detained at Fort Dix awaiting court martial
* he pled guilty to the charges of being AWOL at the time as he was advised that he would otherwise face a long jail sentence
* subsequent to his Army discharge, he struggled with the effects of his injuries and thus experienced difficulties in finding and retaining employment
* in 1982, he was convicted of larceny for which he was incarcerated for approximately 5 years
* subsequent to his release, he dedicated himself to his faith and family and has several letters of support attesting to his good character
* he has been diagnosed by multiple medical professionals with several conditions related to his injuries in the RVN, including PTSD and a traumatic brain injury (TBI)
* on 31 July 2013, the VA granted him service-connected disability benefits for a number of ailments, including PTSD and TBI, amounting to a disability rating of 90 percent

3.  Counsel provides:

* Federal District Court Decision to Remand
* legal brief
* declaration of law student intern
* DA Form 20 (Enlisted Qualification Record)
* Casual Holding Detachment Fort Devens, MA, Transmittal of Courts-Martial Charges
* Headquarters, U.S. Army Training Center and Fort Dix, Court-Martial Charges, dated 23 July 1974
* Army Review Boards Agency letter, dated 2 December 2010, including complete prior ABCMR file record on applicant
* DD Form 214 (Report of Separation from Active Duty)
* excerpts from "The 9th Infantry Division in Vietnam:  Unparalleled and Unequaled"
* excerpts from the "9th Infantry Division:  Old Reliables'"
* Naval Hospital, St. Albans, Purple Heart letter, dated 31 May 1968
* Naval Hospital, St. Albans, medical document
* Record of Trial by Court-Martial
* Federal Bureau of Investigation Form FD-220a regarding deserter fugitive status
* Headquarters, Fort Devens, letter, dated 26 February 1970, to applicant's father advising of his son's AWOL status
* Headquarters, U.S. Army Training Center and Fort Dix, General Court-Martial Order Number  61, dated 19 December 1974
* Standard Form 513 (Clinical Record Consultation Sheet), dated 2 July 1974
* Headquarters, U.S. Army Training Center and Fort Dix, General Court-Martial Order Number 137, dated 1 October 1974
* DD Form 259A (Bad Conduct Discharge Certificate)
* Office of the Adjutant General, Reserve Components Personnel and Administration Center, letter, dated 8 March 1976, informing the applicant of a clemency discharge
* letter from a Doctor of Osteopathy, dated 22 November 2010
* DA Form 3349 (Medical Condition – Physical Profile Record)
* Connecticut Department of Public Safety State Police Bureau of Identification Report, dated 21 March 2011
* State of Connecticut Department of Health Services Certificate of Live Birth for applicant's son
* son's high school transcript, dated 25 August 2004
* induction medical examination, dated 20 March 1967
* medical doctor's letter, dated 19 November 2010
* medical doctor's letter, dated 21 October 2010
* Army Review Boards Agency letter, dated 8 March 2010
* Department of Veterans Affairs (VA) Readjustment Counseling Service letter, dated 23 November 2010, attesting to the applicant's TBI and PTSD
* VA decision letter, dated 10 November 2009
* State of Connecticut Department of Public Health License and Certificate of Marriage
* ABCMR letter, dated 27 April 2012
* VA decision letter, dated 8 November 2011
* VA letter, dated 22 October 2013, regarding entitlement to benefits
* VA rating decision letter, dated 20 August 2014, rating applicant with PTSD and TBI, among other ailments
* applicant's self-authored statement, dated 30 December 2014
* Yale School of Medicine Department of Psychiatry psychiatric evaluation, dated 26 July 2011, diagnosing the applicant with PTSD, panic disorder with agoraphobia, mood disorder, insomnia, and cognitive disorder
* four letters of character reference

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC93-13753 on 28 September 1994.

2.  The applicant was inducted into the Army of the United States on 9 May 1967 for a 2-year term of service.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 18 September 1967, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for being AWOL for 5 days during the period 5 through 10 September 1967.

4.  Records indicate the applicant served in the RVN with the 2d Battalion, 39th Infantry Regiment, 9th Infantry Division, from 23 October 1967 through 22 October 1968.  He was advanced to the rank of private first class (PFC)/E-3 effective 26 October 1967.  On 26 April 1968 while on a search and destroy mission in the Mekong Delta area of the RVN, he was blown out of a tree by a grenade explosion and was eventually evacuated to the U.S. Naval Hospital, St. Albans, for medical treatment.

5.  On 31 May 1968, the applicant was awarded the Purple Heart by the commanding officer of the U.S. Naval Hospital, St. Albans, for wounds received in action on 26 April 1968 in the Mekong Delta area of the RVN.

6.  After apprehension by civilian authorities on 5 June 1974, the applicant was charged with three specifications of absenting himself without authority from his unit.  Headquarters, U.S. Army Training Center and Fort Dix, Court-Martial Convening Order Number 224, dated 23 July 1974, and the Record of Trial, dated 31 July 1974, show he pled guilty and was found guilty of three specifications of absenting himself without authority from his unit.  

7.  On 31 July 1974, he requested trial before a military judge alone and was subsequently found guilty of being AWOL from the U.S. Army Medical Holding Detachment, U.S. Naval Hospital, St. Albans, from 4 September 1968 through 17 February 1969; from the U.S. Army Medical Holding Detachment, U.S. Naval Hospital, St. Albans, from 20 February through 5 June 1969; and from the U.S. Army Personnel Control Facility, U.S. Army Training Center and Fort Dix, from 20 June 1969 through 5 June 1974.  He was sentenced to reduction to private/E-1 and a bad conduct discharge.

8.  On 29 January 1975, he was discharged UOTHC in the rank of private/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of conviction by court-martial.  He completed a total of 1 year, 10 months, and 20 days of creditable active service with 2,131 days of lost time, 1,840 days of which were subsequent to what would have been his normal expiration of term of service date.

9.  On 5 February 1976, he was issued a DD Form 215 (Correction to DD Form 214) indicating he was issued a DD Form 1953A (Clemency Discharge Certificate) pursuant to Presidential Proclamation Number 4313.  There is no evidence he applied for a Clemency Program review of his discharge at the time of issuance of the DD Form 215.

10.  He applied to the ABCMR for an upgrade of his bad conduct discharge and his request was denied on 28 September 1994 due to his failure to file within the prescribed time frame.

11.  The applicant's counsel provided several letters from medical professionals attesting to his memory loss, TBI, and PTSD, to include a Yale School of Medicine Department of Psychiatry psychiatric evaluation, dated 26 July 2011, diagnosing him with the following:

* PTSD
* panic disorder with agoraphobia (anxiety disorder resulting in avoidance of situations inducing panic)
* mood disorder due to chronic pain with depressive features
* insomnia related to mood disorder
* cognitive disorders not otherwise specified

12.  Counsel also provided a VA rating decision letter, dated 20 August 2014, granting the applicant a combined service-connected disability rating of 90 percent for the following conditions:

* PTSD – 70 percent
* left shoulder osteoarthritis – 20 percent
* left lower extremity sciatica (pain radiating along the sciatic nerve) – 20 percent
* lumbosacral (lower back) strain with degenerative arthritis of the spine – 10 percent
* tinnitus (ringing in the ears) – 10 percent
* TBI – 10 percent

13.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR.  The ABCMR may grant a formal hearing whenever justice requires.

14.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

15.  Army Regulation 635-200 Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-11 also provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

16.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual (DSM) of Mental Disorders is published by the American Psychiatric Association (APA) and provides standard criteria and common language for the classification of mental disorders.  In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma."

17.  PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor.  In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic.  Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress.  Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified.  Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat.  Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations.

18.  The fifth edition of the DSM was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters:  intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.

	a.  Criterion A – Stressor:  The person was exposed to:  death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows (one required):

		(1)  direct exposure;

		(2)  witnessing, in person;

		(3)  indirectly, by learning that a close relative or close friend was exposed to trauma.  If the event involved actual or threatened death, it must have been violent or accidental; or

		(4)  repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders collecting body parts, professionals repeatedly exposed to details of child abuse).  This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

	b.  Criterion B – Intrusion Symptoms:  The traumatic event is persistently re-experienced in the following way(s) (one required):

		(1)  recurrent, involuntary, and intrusive memories;

		(2)  traumatic nightmares;

		(3)  dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness;

		(4)  intense or prolonged distress after exposure to traumatic reminders; or

		(5)  marked physiologic reactivity after exposure to trauma-related stimuli.

	c.  Criterion C – Avoidance:  Persistent effortful avoidance of distressing trauma-related stimuli after the event (one required):

		(1)  trauma-related thoughts or feelings; or

		(2)  trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

	d.  Criterion D – Negative Alterations in Cognitions and Mood:  Negative alterations in cognitions and mood that began or worsened after the traumatic event (two required):

		(1)  inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs);

		(2)  persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous");

		(3)  persistent distorted blame of self or others for causing the traumatic event or for resulting consequences;

		(4)  persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame);

		(5)  markedly diminished interest in (pre-traumatic) significant activities, feeling alienated from others (e.g., detachment or estrangement); and

		(6)  constricted affect, persistent inability to experience positive emotions.

	e.  Criterion E – Alterations in Arousal and Reactivity:  Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event (two required):

		(1)  irritable or aggressive behavior;

		(2)  self-destructive or reckless behavior;

		(3)  hypervigilance;

		(4)  exaggerated startle response

		(5)  problems in concentration; and

		(6)  sleep disturbance.

	f.  Criterion F – Duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 month.

	g.  Criterion G – Functional Significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H – Exclusion:  Disturbance is not due to medication, substance use, or other illness.

19.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.

20.  On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service.

21.  BCM/NRs are not courts, nor are they investigative agencies.  Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered:

* is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?
* does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service?
* does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
* did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
* was the applicant's condition determined to have existed prior to military service?
* was the applicant's condition determined to be incurred during or aggravated by military service?
* do mitigating factors exist in the applicant's case?
* did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
* was the applicant's misconduct premeditated?
* how serious was the misconduct?

22.  Although DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the records that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge.  In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service.  BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct.  PTSD is not a likely cause of premeditated misconduct.  BCM/NRs will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for misconduct were conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's discharge was commensurate with the reason for discharge and his overall record of military service in accordance with the governing regulations in effect at the time.

2.  At the time of his discharge, PTSD was largely unrecognized by the medical community and DOD.  However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion.

3.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service.

4.  A review of the applicant's records and the evidence he provided shows he was subjected to a traumatic event while serving in combat in the RVN after which he was evacuated from the theater to a U.S. Naval Hospital for medical care.  He received a Purple Heart for his injuries resulting from the event.

5.  Subsequent to his traumatic experiences in the RVN, medical evidence shows the applicant was diagnosed with PTSD/PTSD-related symptoms by multiple competent mental health professionals, to include professionals at the VA.  Therefore, it is reasonable to assume the applicant's PTSD condition existed at the time of his discharge.

6.  The applicant's record reflects a 5-day period of AWOL at the start of his military career, but is otherwise void of any serious misconduct during this period of service and the subsequent misconduct of being AWOL from the U.S. Naval Hospital on three separate occasions, though not unpremeditated, appears to have been the result of uncharacteristic lapses in judgment.  The applicant served 1 year in the RVN prior to his medical evacuation and his prolonged periods of AWOL occurred while he was in a medical hold status after being injured in combat, not as a mechanism for shirking service in the wartime theater.

7.  It should be concluded that the PTSD conditions were a causative factor in the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the character of his service to general under honorable conditions and reinstating his rank of private first class (PFC)/E-3 effective 26 October 1967.

8.  However, in weighing the same factors, the applicant's overall service does not rise to a fully honorable character of service.



BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends amendment of the decision of the ABCMR set forth in Docket Number AC93-13753, dated 28 September 1994, by reissuing the applicant's DD Form 214 for the period ending 29 January 1975 to show the character of service as "General Under Honorable Conditions" and to show his rank as PFC/E-3 with an effective date of 26 October 1967.



      _______ _   __X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20150001044



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ABCMR Record of Proceedings (cont)                                         AR20150001044



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